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Help! Neighbor wants to cut down 100 year old avocado tree.

from San Juan Capistrano, CA

posted almost 5 years ago

My neighbor has a 100 year old avocado tree and about 50% of it hangs over my property. We love this tree. It adds beautiful curb appeal to our house, shades our living room windows (we are in a hot climate), and adds a lot of charm to the property.

I live in a house and am the owner. My neighbor is a 4-plex. One of the tenants had a kid recently and complained about the risk of avocados falling and hitting her kid. This really bugs me since the tree was there forever, including when she signed the lease. The owner of the property is about 80 years old and a total sweetheart. This tenant has aggressively pursued the owner about cutting the tree and the owner caved in (despite my gentle protests).

Tree trimmers are coming in a few days. The owner told me they'll just "scale the branches back", while the tenant told me "they're cutting it WAY back and if an avocado hits my kid I'll sue her".

I love this tree and want it to stay. I have and will live here for years while tenants come and go. On top of that, if they trim it a lot the tree may be lopsided and damage my property if it falls. (This has happened to me before, with a different avocado tree actually.)

1. Is there anything I can do about this?

2. Do they need permission from the city to cut a 100 year old tree that is solely on their property (not on street)?

Investor from Fort Wayne, Indiana

replied almost 5 years ago

generally u can cut whatever hangs on your property but tree belongs to whose property it is on. if someone told u how to manage your property u prob would not he happy. i dont see u have much recourse but your city may have some ordinance i dont know of so u may check with them

Developer, Real Estate Broker, from Lake Oswego OR Summerlin, NV

replied almost 5 years ago

If you were in Lake Oswego Oregon you would need a city permit. and if they deemed the tree significant you could not touch it.

really depends on the city and or county ordinances. check with your local planning department they will tell you if they have any jurisdiction. Other wise you have no standing for a tree that is not on your property.

people have a lot of these issues on the west coast with View issues or lack there of.

from Aurora, Colorado

replied almost 5 years ago

Have you thought about calling the local media? You can never be sure how that would play out, but I'm sure plenty of folks would have the same idea as me... "Jeez lady,if you're that freaked out just don't let your kid play under the friggin tree." (Of course there would still be the likelihood of injury from a falling piece of sky)

from Severna Park, Maryland

Investor from Whippany, New Jersey

replied almost 5 years ago

Not much you can do but try to be reasonable and be there when the tree company comes as you may be able to talk to them to minimize the damage. Call the town to see if they need a permit and make them follow the permit rules. Also I am not an avocado tree expert but you could offer to pay a tree surgeon company to pick them before they fall every year and agree to that to help eliminate the hazard.

Developer, Real Estate Broker, from Lake Oswego OR Summerlin, NV

I have been on both sides of this one.. When I was in the Timber bizz here in Oregon we had a few logging sites that got protested. But Oregon is so pro logging only the kids down town Portland really cared the rest of the state lives off of logging and the income it provides

from San Juan Capistrano, CA

replied almost 5 years ago

@Jon Holdman - Funny you mention buying it, we would LOVE to buy this property. The owner is an elderly woman whose husband is on his death bed, it's clear they want their closing years to be in peace so they let their tenants basically do whatever they want. Can't really blame them I guess.

The rents are about 20% too low and they have atrocious tenants, all of which spells opportunity for a new owner.

About the tree: The city doesn't have any rules against it since it's not on or over public land. I think I'll call the owner and chat about it a bit, but at this point I am pretty resigned to my fate. Thanks for all the help guys.

Rental Property Investor from Milwaukee, WI

replied almost 5 years ago

If the owner is letting the tenants run the show, and you live next door, that won't be good for your property. Find out if the owner is looking to sell and get some money to pass on to their kids or use for their retirement. You never know, they may take you up on it.

Investor from Louisville and Memphis, TN

replied almost 5 years ago

Maybe offer to get rid of the tree and then have somebody dig it up and move it a couple feet onto your property?

The neighbor would still be able to cut anything on their side. Would be possible to move it or plant a new one on your property to where you get the same look/feel, but they can't do anything about it?

Rental Property Investor from Mercer Island, WA

replied almost 5 years ago

A hundred year old avocado tree would be HUGE. Moving won't be an option.

@Scott J. perhaps you should seriously pursue buying the property. Given the circumstances they may own it free and clear. Offer them some cash and an owner financed deal. They continue to have money coming in and get rid of the headaches of dealing with tenants.

from San Juan Capistrano, CA

replied almost 5 years ago

@Jon Holdman - That's been my dream for years. They do own it free and clear too. The guy spent $50k building it and buying the land back in the 50s and now it's probably worth $1M, at least that's what I would hope to pay.

About once a year I mention to the owner that if they ever want to sell I'd love a first crack at an offer. But I get the feeling they really want to pass it on to their kids. Although perhaps it's just the big tax hit they don't want. Your suggestion of offering owner financing is a good one. The best I could do is 10% down, which may or may not cut the mustard. I'm really not well-versed on owner financing.

When I call the owner today I'll ignore the tree thing (what good would it do anyway?) and mention that if they ever want to sell I would be happy to buy it and if they financed it they would avoid the tax hit and could secure long-term income to their children without passing along a headache. Are there any other benefits to them I can mention regarding seller financing?

Rental Property Investor from Mercer Island, WA

replied almost 5 years ago

One of the benefits is taxes. Its an installment sale in IRS terms. Because they're only receiving part of their gains each year they only pay taxes on that portion. And they will get more income than if they just sold it because they would be earning interest. Which is, unfortunately, taxed as ordinary income. So the payments you make to them consist of their basis (no tax), gains (capital gains tax), and interest (ordinary income.) This works in some somewhat complicated way I don't really understand.

If they are intending to leave it to their kids they may be expecting them to receive a stepped up basis. That avoids the tax on gains completely. Hard to beat that.